Can a Tennessee county school system refuse to enroll students who live inside a separate municipal school district, or stop providing services to those students?

Plain-English summary

A 2006 Tennessee AG opinion (06-102) said counties did not have to enroll students who live inside a separate municipal school system, and that, "as a general rule," counties did not have to keep providing services to those students. This opinion supplements that 2006 conclusion. The general principle still holds, but specific laws constrain enrollment or require continued educational services in certain circumstances. The opinion discusses:

• Homeless children and youths under the McKinney-Vento Homeless Assistance Act
• Students in foster care under § 49-6-3102(c)
• Children of active-duty military and reserve component families under the Interstate Compact and § 49-6-313
• Children of relocating service members under § 49-6-3101
• Some children in temporary caregiver arrangements under the Power of Attorney for Care of a Minor Child Act, subject to hardship and verification requirements
• Educational services for detained youth under § 49-6-3023 and the related rules
• Equal access to academic and arts opportunities for students already enrolled as transfers under the Access and Opportunity Act, § 49-6-309(a)

The 2006 opinion is "withdrawn" to the extent it is inconsistent with these constraints.

What this means for you

If you serve on a local school board or are a superintendent

The opinion holds that the 2006 opinion's general rule still holds: a county school system generally retains discretion over enrolling students who live outside its district. But it identifies conditional constraints on enrollment and services involving homeless children and youths (McKinney-Vento, which requires immediate enrollment pending dispute resolution under 42 U.S.C. § 11432(g)(3)(E)); students in foster care (§ 49-6-3102(c)); children of military and reserve-component families (Interstate Compact, §§ 49-12-301, 49-6-313, 49-6-3101); some students under a hardship power of attorney (§ 34-6-304(b)); and educational services for detained youth (§ 49-6-3023). It also holds that enrolled transfer students must receive equal access under § 49-6-309(a). The 2006 opinion is withdrawn to the extent inconsistent.

If you are a parent of a homeless or foster-care student

The opinion says McKinney-Vento can prevent a county from declining to enroll a homeless student under the circumstances the Act describes, including immediate enrollment pending dispute resolution. For a foster-care student, § 49-6-3102(c) says the student remains enrolled in the same school, unless the Department of Children's Services determines another placement is in the student's best interest; the student then enrolls where placed or where the parent resides.

If you are a military family relocating to Tennessee

Footnote 8 says § 49-6-3101 requires a district to allow a relocating service member's dependent child to enroll before moving if the child will reside in the district after relocation and the service member provides documentation of the relationship and military orders. § 49-6-313 extends Compact-style protections to reserve-component families.

If you are a parent or guardian using a hardship power of attorney

The opinion holds that under the Power of Attorney for Care of a Minor Child Act, a temporary caregiver has the right to enroll the child where the caregiver resides in the limited hardship situations listed in § 34-6-302(a)(1), and that a school system is not required to enroll in every hardship instance and may require verification.

If you are an attorney representing transfer students

The opinion holds that under § 49-6-309(a), once a transfer student enrolls in good academic standing, the receiving district must give equal access to all academic and arts programs, clubs, events, and opportunities, and that the fact a transfer student resides in a municipality is not a sufficient basis to cut off that access.

Common questions

Q: Can a Tennessee county still refuse to enroll a student who lives in a separate city school district, just because of geography? A: Generally yes, for routine cases. The 2006 opinion's general rule holds: a county is not required to enroll students who reside in a separate municipal system. Specific statutes limit that discretion in the circumstances they describe. The Access and Opportunity Act governs equal access for students already enrolled as transfers; it does not require a district to accept a transfer.

Q: Does the McKinney-Vento Homeless Assistance Act override Tennessee enrollment rules? A: Under the circumstances McKinney-Vento describes, it can prevent a county school system from declining to enroll a homeless student. Tennessee Code Ann. § 49-6-3102(b) expressly makes local board discretion subject to the Act's exceptions, and a student in an enrollment dispute must be immediately enrolled pending resolution.

Q: What counts as "homeless" under McKinney-Vento?
A: An individual who lacks a fixed, regular, and adequate nighttime residence (42 U.S.C. § 11434a). The definition includes children sharing housing with others due to loss of housing, economic hardship, or similar reason ("doubled-up" situations), unsheltered children, and children in motels, shelters, or transitional housing.

Q: Who pays for transportation when a homeless student stays in their school of origin but moves to a different district? A: McKinney-Vento requires the two affected districts to "agree upon a method to apportion the responsibility and costs." 42 U.S.C. § 11432(g)(1)(J)(iii)(II). If they cannot agree, costs are shared equally.

Q: What happens if a student in foster care is placed in a different county? A: Under § 49-6-3102(c), the student remains enrolled in the same school they attended before entering custody, unless the Department of Children's Services determines a different placement is in the student's best interest. If DCS so determines, the student enrolls in the system serving the placement location or where the parent resides.

Q: What about virtual or homebound students?
A: The opinion does not address virtual education specifically. The same enrollment rules apply, but the operational details (which district provides curriculum, which provides services) often turn on intergovernmental agreements.

Q: Does this opinion change the rules for charter schools? A: Charter schools have their own enrollment rules under separate provisions. The opinion does not address charter-specific enrollment, but the McKinney-Vento and foster-care protections apply across all public schools, including public charters.

Background and statutory framework

Tennessee's school-enrollment regime starts from the principle that local school boards "manage and control" the schools in their jurisdiction. § 49-2-203(a)(2). The General Assembly has given local boards "the broadest discretion" over admission and transfer decisions, repeatedly using the permissive verb "may" in the relevant statutes (§§ 49-6-302(f), 49-6-403(e), 49-6-3001(b)(3), 49-6-3104(a), (d)).

That broad discretion is what the 2006 opinion described. Since 2006, however, the legislature has layered specific constraints on top:

• The 2006 amendments to § 49-6-3102(b) made McKinney-Vento explicit (2006 Pub. Acts, ch. 756).
• The Interstate Compact on Educational Opportunity for Military Children was enacted in 2010 and codified at § 49-12-301.
• 2017 legislation (§ 49-6-3023) required educational services for detained youth.
• 2019 legislation (§ 49-6-3101) required enrollment of relocating military dependents.
• 2023 legislation (§ 49-6-313) extended Compact-style protections to reserve-component families.
• 2023 also brought the Access and Opportunity Act (§ 49-6-309), guaranteeing equal access for transfer students.

These statutes constrain enrollment or impose service duties in different ways. The Access and Opportunity Act applies only after a transfer student enrolls. The 2025 opinion brings those distinct rules together.

Citations and references

Statutes:

• Tenn. Code Ann. § 49-6-3102 (Enrollment authority and McKinney-Vento incorporation)
• Tenn. Code Ann. § 49-6-3104 (Out-of-district admission and transfer)
• Tenn. Code Ann. § 49-6-309 (Access and Opportunity Act equal-access)
• Tenn. Code Ann. § 49-12-301 (Interstate Compact on Educational Opportunity for Military Children)
• 42 U.S.C. § 11431 et seq. (McKinney-Vento Homeless Assistance Act)

Cases:

• City of Humboldt v. McKnight, 2005 WL 2051284 (Tenn. Ct. App. 2005), General Assembly's broad discretion over educational entities
• Martin v. Piserchia, 2024 WL 3812071 (D.N.J. 2024), McKinney-Vento school-of-origin presumption

Prior AG opinions:

• Tenn. Att'y Gen. Op. 06-102 (June 21, 2006): withdrawn to the extent inconsistent with this opinion

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2025/op25-008.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 7, 2025
Opinion No. 25-008
Issues Impacting a Public School System's Discretion Over the Enrollment and Education of Students that Live Outside the District

Question
In Tenn. Att'y Gen. Op. 06-102 (June 21, 2006) ("the 2006 opinion"), the Office of the Attorney General concluded that no state law requires a county school system to enroll students who are residents of a municipality with a separate school system. The Office also concluded that, "as a general rule," a county school system would not have to continue providing services for students who are enrolled in municipal school systems. Is that opinion still valid?

Opinion
Op. 06-102 requires supplementation. Local public school systems generally retain discretion over the enrollment of students that live outside of their districts. But in some circumstances, a public school system cannot deny services to a student simply because the student lives in an area served by another system.

ANALYSIS

In recognition of the "inherent value of education," our State Constitution provides that "[t]he General Assembly shall provide for the maintenance, support and eligibility standards of a system of free public schools." Tenn. Const., art. XI, § 12. The General Assembly has determined that "[t]here shall be a local public school system operated in each county or combination of counties." Tenn. Code Ann. § 49-1-102(c). And in some regions, a local public school system may be "operated in a municipality." Id. “[T]he General Assembly has the broadest discretion to create or allow various entities to provide educational services to children in the state.” City of Humboldt v. McKnight, No. M2002-02639-COA-R3-CV, 2005 WL 2051284, at *15 (Tenn. Ct. App. Aug. 25, 2005).

In the 2006 opinion, this Office considered what types of responsibilities a county school system might have when its operations are juxtaposed by the presence of a municipal school system within the same county. Specifically, the Office addressed whether a county school system may "decline to permit a county resident who is also a resident of a municipality to enroll in the county school system or decline to continue to provide services to the student due to the simple fact that they reside inside the municipality." Tenn. Att'y Gen. Op. 06-102 (June 21, 2006). We opined that "[n]o state law requires a county school system to enroll students who are residents of a municipality with a separate school system." Id. And we also stated that, "as a general rule, the county would not have to continue to provide services for students who are enrolled in municipal school systems." Id.

The basic thrust of what was communicated in the 2006 opinion still generally rings true. As noted in the 2006 opinion, a local board of education manages and controls the schools in its jurisdiction. Id.; see Tenn. Code Ann. § 49-2-203(a)(2). And pursuant to § 49-6-3104(a), "[l]ocal boards of education may admit pupils from outside their respective local school systems." Tenn. Code Ann. § 49-6-3104(a) (emphasis added). Additionally, they "may" "arrange for the transfer of pupils residing within their systems to schools located outside their districts, and enter into agreements with other local boards of education for the admission or transfer of pupils from one
. . . school system to another." Id.

This theme of local discretion over inter-district matters is reiterated in § 49-6-3104(d). Although that provision provides that "an adult pupil or the parent or guardian of a minor pupil may transfer the pupil to a school system outside the one serving the pupil's place of residence," the transfer is "at the discretion of the receiving board of education." Tenn. Code Ann. § 49-6- 3104(d) (emphasis added). Similarly, § 49-6-3001(b)(3) provides that a student who meets state board of education requirements for transfer or admission purposes "may" be admitted by a local board of education. Tenn. Code Ann. § 49-6-3001(b)(3). And in other specific contexts, statutory provisions echo this general principle of local discretion. See, e.g., Tenn. Code Ann. § 49-6-302(f) ("Any county board of education may admit to the elementary schools pupils resident in another county, as provided in § 49-6-3104."); Tenn. Code Ann. § 49-6-403(e) (noting that high school pupils residing in one county "may" be admitted to the high schools of another county as provided by § 49-6-3104); see also Tenn. Code Ann. § 49-6-3102(b) (noting that, subject to certain exceptions, the authority of every school board "in the matter of enrollment of pupils within its local school system shall be full and complete and its decision as to the enrollment of any pupil in any such school shall be final").

Although bills introduced during the first regular session of Tennessee's One Hundred Thirteenth General Assembly proposed that enrollment decisions be guided by considerations other than a Tennessee resident's specific residential address, these bills have not been enacted into law. When viewed through a broad lens, county boards of education thus still generally retain wide discretion regarding the enrollment of students outside their jurisdictions. That basic principle from the 2006 opinion persists.

That said, a school system's discretion is not absolute. Over the past two decades the General Assembly has added provisions to the Tennessee Code constraining the ability of school systems to decline the enrollment of students in certain circumstances.

"Homeless children and youths"
Start with one of the statutory provisions referenced within a footnote in the 2006 opinion, § 49-6-3102(b). The month before this Office issued the 2006 opinion, the General Assembly amended § 49-6-3102(b) to note that local school boards' enrollment decisions are constrained by the McKinney-Vento Homeless Assistance Act ("McKinney-Vento"). That amendment provides that while "the authority of each and every local school board in the matter of enrollment of pupils within its local school system shall be full and complete and its decision as to the enrollment of any pupil in any such school shall be final," Tenn. Code Ann. § 49-6- 3102(b), that discretion yields to exceptions "provided in . . . the McKinney-Vento Homeless Assistance Act (42 U.S.C. § 11431 et seq.)." Id.

Under certain circumstances, McKinney-Vento prevents a county school system from declining to enroll a student and from ceasing the provision of services to a student. And these circumstances could include instances where a student is living within a municipality where another public school system operates. "Homeless children and youths" who benefit from McKinney-Vento's provisions are "individuals who lack a fixed, regular, and adequate nighttime residence." 42 U.S.C. § 11434a. They include, among others, "children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason." Id. Notably, McKinney-Vento "presumes that keeping the child in their school of origin
. . . . is in the child's best interests." Martin v. Piserchia, No. 23-21669, 2024 WL 3812071, at
*10 (D.N.J. Aug. 14, 2024). But even when some type of dispute arises "over eligibility, or school selection or enrollment in a school," "the child or youth shall be immediately enrolled in the school in which enrollment is sought, pending final resolution of the dispute, including all available appeals." 42 U.S.C. § 11432(g)(3)(E).

McKinney-Vento also addresses how transportation services should be provided to affected students, including for those who begin living in an area served by another educational agency but continue their education in the school of origin. For that subset of students, McKinney- Vento instructs that the respective agencies "shall agree upon a method to apportion the responsibility and costs for providing the child or youth with transportation to and from the school of origin." 42 U.S.C. § 11432(g)(1)(J)(iii)(II). And if no such agreement can be reached, "the responsibility and costs for transportation shall be shared equally." Id.

Students in Foster Care
Section 49-6-3102 also constrains local boards of education concerning students who are in foster care. Under § 49-6-3102(c), "any student placed in the custody of the department of children's services shall remain enrolled in the same public school the student attended prior to entering custody." Tenn. Code Ann. § 49-6-3102(c). This provision further directs that "[t]he department of children's services shall decide if the student's school is in the student's best interest." Id. "If the department . . . determines that enrollment in the public school, which the student attended prior to entering care, is not in the student's best interest, the student shall be enrolled in the local school system where the student is placed or where the parent resides." Id.

Children of Military Families
Certain statutory protections are also now in place for the children of military families. In 2010, Tennessee enacted the Interstate Compact on Educational Opportunity for Military Children, which aims to remove educational barriers imposed on children of military families because of frequent moves and parental deployment. Tenn. Code Ann. § 49-12-301. In addressing situations where a child has been placed in the care of someone who lives in a different area from that of the custodial parent, the statute instructs as follows: "A transitioning military child, placed in the care of a non-custodial parent or other person standing in loco parentis who lives in a jurisdiction other than that of the custodial parent, may continue to attend the school in which he/she was enrolled while residing with the custodial parent." Id. In 2023, the General Assembly extended the benefits codified in § 49-12-301 "to school-aged children in the household of a member of any reserve component of the armed forces of the United States, including members of the Tennessee army and air national guard, who are enrolled in any of the grades kindergarten through twelve (K-12)." Tenn. Code Ann. § 49-6-313.

Students Facing Situational Hardships and the Involvement of Temporary Caregivers Situational hardships also affect where children can be enrolled. Under the Power of Attorney for Care of a Minor Child Act, a parent may delegate "temporary care-giving authority" regarding a child when a hardship prevents the parent from providing care. Tenn. Code Ann.
§ 34-6-302(a)(1). As relevant here, the delegated caregiver "shall have the right to enroll the minor child in the local education agency serving the area where the caregiver resides." Tenn. Code Ann. § 34-6-304(b) (emphasis added). Although a school system is not required to enroll a student in every instance involving hardship, and can even require certain verification before enrollment, in limited instances of hardship a local school system's discretion over enrollment can be constrained.

Students Incarcerated in Detention Centers
A student's incarceration in a detention center also implicates unique issues regarding that student's enrollment status and the responsibilities that a county school system may have to provide educational services. The specific details related to these matters vary depending on the specific situation, and the regulations developed pursuant to the authority in § 49-6-3023 illustrate this. The takeaway, though, is that a student's incarceration impresses particularized duties upon school systems to provide educational services, just as do other special circumstances where a student's residential stability is impacted.

Transfer Students' Access to Academic and Other Opportunities The recently enacted Access and Opportunity Act also touches on whether a county school system could decline to continue to provide services to a student due to the "simple fact" that the student resides in a municipality. While the Act does not require enrollment of students seeking a transfer, it affirms the right of transfer students that are enrolled to have "equal access" to various opportunities. See Tenn. Code Ann. § 49-6-309(a) (stating that each local education agency "shall provide" transfer students with equal access "to all academic and arts programs, clubs, events, and opportunities offered" if the students "enroll or re-enroll . . . in good academic standing"). So the simple fact that a transfer student resides in a municipality would not be a sufficient basis for a county school system to cut off access to the academic and other opportunities that are referenced in § 49-6-309. Whether or not all these opportunities are strictly conceptualized as "services" provided by the school system, the statute makes clear that there must be equality of access.

To recap, although county boards of education still generally retain wide discretion regarding the enrollment of students that live outside their jurisdictions, this discretion is not absolute. Under certain circumstances, a county school system would be required to enroll and educate students who live in an area served by another local public school system. And in some cases, a county school system would not be able to deny services to a student simply because the student lived in another jurisdiction. To the extent that the 2006 opinion indicates otherwise, particularly as it relates to the enrollment and education of students, it is withdrawn.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

MATTHEW KERNODLE
Assistant Attorney General

Requested by:
The Honorable Lowell Russell
State Representative
Cordell Hull Building, Suite 634
425 Rep. John Lewis Way North
Nashville, Tennessee 37243

8 Codified at § 49-6-3101, 2019 legislation also provides that a board of education “shall allow a student who does not reside within the boundaries of the school district to enroll in a public school within the school district” if (1) “[t]he student is the dependent child of a service member who is being relocated to this state on military orders and will, upon relocation, be a resident of the school district, but will not be a resident of the school district when the school district conducts an open enrollment period” and (2) “[t]he service member provides the school district with documentation evidencing that the student is the dependent child of the service member and that the service member is being relocated to this state on military orders and will, upon relocation, be a resident of the school district.” Tenn. Code Ann. § 49-6-3101(b). As defined within this legislation, “dependent child” simply means “a child of school age who is the natural child, stepchild, or adopted child of a service member.” Tenn. Code Ann. § 49-6-3101(a).

11 The legislation codified at § 49-6-3023 was originally enacted in 2017.